U.S. v. Alvarez

• Decision Date: 31 August 2007
• Docket Number: No. 05-20943-CR.,05-20943-CR.
• Citation: 506 F.Supp.2d 1285
• Parties: UNITED STATES of America, Plaintiff, v. Carlos ALVAREZ and Elsa Alvarez, Defendants.
• Court: U.S. District Court — Southern District of Florida

506 F.Supp.2d 1285

UNITED STATES of America, Plaintiff, v. Carlos ALVAREZ and Elsa Alvarez, Defendants.

No. 05-20943-CR.

United States District Court, S.D. Florida.

August 31, 2007.

COPYRIGHT MATERIAL OMITTED

Francis Massabki, Zuckerman Spaeder Taylor Evans, Steven E. Chaykin, Akerman Senterfitt, Jane W. Moscowitz P.A., Moscowitz, Moscowitz & Magolnick, P.A., Miami, FL, for Defendants.

Brian K. Frazier, U. S. Attorneys, Miami, Fl, for Plaintiff.

ORDER REVERSING MAGISTRATE JUDGE'S ORDER; DENYING MOTION FOR APPOINTMENT OF COUNSEL REGARDING CONSTITUTIONAL QUESTION

K. MICHAEL MOORE, District Judge.

THIS CAUSE came before the Court upon the United States' Appeal (DE # 307) of the Magistrate Judge's Orders granting Defendants Motion to Allow Withdrawal of Trial Counsel, to Proceed In Forma pauperis, and for Appointment of a Federal Public Defender (DE # 255), and upon Elsa Alvarez's Motion for Appointment of Counsel Regarding Limited Issue (DE # 318).

UPON CONSIDERATION of the Motion, the record, and being otherwise fully advised in the premises, the Court enters the following Order:

I. Background

On December 22, 2005, Defendants Carlos Alvarez and Elsa Alvarez (collectively "Defendants") were indicted on charges that they gathered information within the United States on matters of interest to the Cuban government, informing the Cuban government about anti-Castro individuals and groups within the Cuban community in South Florida, and carrying out other operation directives. Indictment (DE # 3) at 2. Defendants retained private counsel to defend them in this; criminal action. Almost a year later, after much litigation, their attorneys helped negotiate plea agreements (DE # 217 (Elsa); DE # 216 (Carlos)) with the prosecution.

Defendant Carlos Alvarez pled guilty to the crime of conspiring to act as an agent of a foreign government without prior notification to the Attorney General, in violation of 18 U.S.C. § 951(a) and 28 C.F.R. §§ 73.01 et seq.; all, in violation of 18 U.S.C. 371. Carlos Plea Agreement ¶ 1; Plea Hearing Minutes (DE # 218). Defendant Elsa Alvarez pled guilty to the crime of misprison of a felony, that is, the participation of co-defendant Carlos Alvarez in a conspiracy to act as an agent of a foreign government without prior notification to the Attorney General. Elsa Plea Agreement ¶ 1; Plea Hearing Minutes (DE # 219). In their plea agreements, Defendants agreed to waive the right to appeal any sentence imposed by the Court unless their sentences either: (1) exceeded the maximum permitted by the statute of conviction; or (2) were the result of an upward departure from the guideline range that this Court calculated at sentencing. Plea Agreements ¶ 8. Even though one of the exceptions would allow them to appeal an upward departure from "the guideline range calculated by the Court," the Government made it clear that they did not believe any guideline range would be calculated, because it was the Government's position that no applicable guideline range existed. Carlos Plea Agreement ¶ 6 ("The United States' view is that, because the underlying substantive offense is not covered by an expressly promulgated or analogous offense guideline, the provisions of 18 U.S.C. § 3553 shall control[.]").

In the parties' pre-sentencing briefing and at Defendants' sentencing hearing, the Court considered extensive argument on whether there exists, for the crimes Defendants plead guilty to, a sufficiently analogous sentencing guideline that should have been applied in sentencing Defendants. Sentencing Hearing (morning) at 49-66. After considering all arguments on either side of the issue, the Court found that no sufficiently analogous guideline provision existed for Defendants' crimes. Sentencing Hearing (morning) at 66.

The Court sentenced Defendants according to 18 U.S.C. § 3553. Sentencing Hearing (morning) at 66; Sentencing Hearing (afternoon) at 99-103. In sentencing Defendants, the Court considered each of the factors listed in 18 U.S.C. § 3553. Sentencing Hearing (afternoon) at 99-103. In connection with the § 3553 factors, the Court considered the numerous exhibits, letters submitted to vouch for Defendants' good character and service, the testimony of the numerous good character witnesses that testified for Defendants at the sentencing hearing, the sentencing guidelines, extensive arguments regarding whether and why other provisions might or might not be analogous, and the good work and personal qualities of Defendants over many years. See Sentencing Hearing. Even though the Government recommended that Elsa Alvarez be sentenced to 21 months incarceration, the Court found, after applying 18 U.S.C. § 3553 and considering all applicable factors, that the most reasonable sentence for her serious crime was the statutory maximum incarceration of 36 months. Sentencing Hearing (afternoon) at 103. Similarly, the Court found that the most reasonable sentence for Carlos Alvarez's serious crime, which continued for decades, was the statutory maximum incarceration of 60 months. Sentencing Hearing (afternoon) at 102.

Defendants now wish to appeal their sentences arguing that the Court erred in not finding and using an analogous sentencing guideline and in not finding downward departures or variances warranted. Defendants concede that the sentencing guidelines are advisory, and that the Court is required to consider the factors under 18 U.S.C. § 3553. Defendants point to nothing in the record that indicates the Court would not have sentenced Defendants to their present sentences based 18 U.S.C. § 3553, even if the Court had found a sufficiently analogous sentencing guideline.

The Defendants have moved for the Court to allow withdrawal of their trial counsel, grant them leave to proceed with the appeal of their sentences in forma pauperis, and appoint a federal public defender to represent them on appeal. The Magistrate Judge found that, after the extensive litigation and attorneys' fees in this case, Defendants are now indigent and cannot afford to pay for counsel to appeal their sentences. Mag. Order (DE # 284). In light of Defendants becoming indigent, the Magistrate Judge granted the motion allowing trial counsel to withdraw, allowing Defendants to proceed on appeal in forma pauperis, and granting CJA counsel. The Government appealed from the Magistrate Judge's decision to grant Defendants' Motion, arguing that Defendants' appeal would be frivolous because Defendants have waived their right to appeal; therefore, Defendants did not qualify for in forma pauperis status.

At a hearing (DE # 320) on the Government's Appeal of the Magistrate Judge's Order, the Court indicated its intention to reverse the Magistrate Judge's Order because the Court concluded that the appeal would be frivolous, and such a conclusion prevented the Court from certifying that the appeal was taken in good faith as required by 28 U.S.C. § 1915(a)(3). Therefore, Defendants would not qualify for court appointed counsel at taxpayer expense under 28 U.S.C. § 1915. At the hearing and in the instant Motion for Appointment of Counsel Regarding Limited Issue, Defendant Elsa Alvarez has challenged the constitutionality of 28 U.S.C. § 1915, because it prevents the Court from appointing counsel to indigent defendants on first-tier appeals once a district court has certified that an appeal is not taken in good faith.

II. Analysis

A. Substantive Appeal Would Be Frivolous

By statute, "[a]n appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith." 28 U.S.C. § 1915(a)(3). "[A] defendant's good faith in this type of case [is] demonstrated when he seeks appellate review of any issue not frivolous." Coppedge v. US, 369 U.S. 438, 445, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). An application to appeal in forma pauperis may be denied "if it appears-objectively-that the appeal cannot succeed as a matter of law." DeSantis v. United Technologies Corp., 15 F.Supp.2d 1285, 1289 (M.D.Fla. 1998) aff'd, 193 F.3d 522 (11th Cir.1999); see also Carroll v. Gross, 984 F.2d 392, 393 (11th Cir.1993) (case is frivolous for in forma pauperis purposes if it appears there is "little or no chance of success"). However, "[t]he good-faith test must not be converted into a requirement of a preliminary showing of any particular degree of merit." Ellis v. U.S., 356 U.S. 674, 674-75, 78 S.Ct. 974, 2 L.Ed.2d 1060 (1958). "Unless the issues raised are so frivolous that the appeal would be dismissed in the case of a nonindigent litigant, ... the request of an indigent for leave to appeal in forma pauperis must be allowed." Id. The Government argued, in its appeal of the Magistrate Judge's Order, that Defendants' appeal of their sentences is frivolous because Defendants signed plea agreements in which they waived the right to appeal unless their sentences either: (1) exceeded the maximum permitted by the statute of conviction; or (2) were the result of an upward departure from the guideline range that this Court calculated at sentencing. Plea Agreements ¶ 8. The Government cites to United States v. Gholston, which held that "[i]f [the defendant] has knowingly, freely, and voluntarily waived his right to appeal the sentencing issues that he now seeks to raise on appeal, this Court cannot certify that [the defendant] appeals in good faith." 133 F.Supp.2d 1304, 1310 (M.D.Fla.2000) aff'd, 275 F.3d 52 (11th Cir.2001).

Defendants dispute whether the waivers cover the sentencing issues they seek to appeal. Defendants claim that their appeal should be allowed under the second exception to the waiver of appeal, because their sentences are "the result of an upward departure from the guidelines range applicable to the offense to which [each defendant] pleaded guilty." Carlos Reply to Mot. to Withdraw at 2; Elsa Reply to Mot. to Withdraw at 2. The Court sentenced each Defendant to the statutory maximum for his/her crime, 60 months for ...